Liftronic Pty Ltd v Montgomery Elevator Co [1995] FCA 689

FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY) No NG 613 of 1995 GENERAL DIVISION ) BETWEEN: LIFTRONIC PTY LIMITED Applicant AND: MONTGOMERY ELEVATOR COMPANY Respondent CORAM: SACKVILLE J. PLACE: SYDNEY DATE: 24 AUGUST 1995 REASONS FOR JUDGMENT In this matter an application has been made pursuant to FCR, O.8, r.2(1)(a) for leave to serve an application and statement of claim outside the jurisdiction. The applicant seeks leave to serve its initiating process upon the respondent, the offices of which appear to be in Moline, Illinois, in the United States of America. Under O.8, r.2(2) the Court must be satisfied that: (a) the proceeding is a proceeding in which the court has jurisdiction; (b) the proceeding is a proceeding to which O.8, r.1 applies; and (c) the applicant has a prima facie case for the relief which is sought.

The case as pleaded alleges two causes of action against the respondent. The first is that the respondent, which carries on business in Illinois, had represented to the applicant that it was ready, willing and able to manufacture and ship to the applicant elevators and escalators in accordance with certain specifications. It is alleged that that representation and an associated representation was misleading and deceptive in the circumstances of the case. It has been submitted that the first cause of action is within O.8 r.1(b) in that the proceeding is founded on a breach of an Act where the breach is committed in the Commonwealth. The statement of claim alleges that the representation was contained in a quotation of 14 April 1994 which was transmitted by facsimile to the offices of the applicant in Australia. It has been submitted on behalf of the applicant that the breach within the meaning of O.8 r.1(b) is that of s.52 of the Trade Practises Act 1974 and that the breach occurred in the Commonwealth of Australia because the facsimile transmission containing the allegedly misleading representations was received by the applicant in this country. Although there has been no analysis of authorities dealing with this issue, I am prepared to accept that this cause of action is within O.8 r.1(b).